Robles v. Fed. Nat'l Mortg. Ass'n
Robles v. Fed. Nat'l Mortg. Ass'n
Opinion of the Court
Ralph and Norma Robles (collectively, "the appellants") appeal from a summary final judgment of foreclosure entered on November 27, 2017 in favor of the appellee, Federal National Mortgage Association ("Fannie Mae"). The summary judgment of foreclosure followed the order of a judicial default entered on June 22, 2017. For the reasons that follow, we affirm.
BACKGROUND
Ralph Robles ("Robles") executed a note in favor of Bank of America, N.A. on September 16, 2005. The note was secured by real property located in Miami, Florida. Fannie Mae is the owner and holder of the note. Robles stopped making payments on the note on February 1, 2012, and defaulted on the note; Fannie Mae initiated a foreclosure action on January 12, 2017; and the appellants were served with the complaint on January 26, 2017.
On February 15, 2017, counsel representing the appellants filed a notice of *988appearance, a notice of unavailability, and a motion for a thirty-day extension of time to file an answer, which was unopposed and granted on May 1, 2017, thereby giving counsel until May 31, 2017 to file an answer. When no answer was filed by the appellants, Fannie Mae filed an ex parte motion for a default on June 16, 2017. Despite being captioned as "ex parte ," the motion was served on all parties, including counsel for the appellants. Counsel for the appellants, who does not dispute that he was served with the motion, took no action, filed no answer, and did not move for an extension of time. On June 22, 2017, the trial court entered a default and the order was sent to all parties, including the appellants' counsel. Again, counsel for the appellants took no action, including failing to petition the trial court to set aside the order of default, even though it is undisputed that he received the order indicating that a default had been entered.
Four months after the entry of the default and the trial court's notice to the appellants and their counsel, Fannie Mae filed a motion for summary judgment of foreclosure. Thereafter, on October 27, 2017, Fannie Mae filed a notice of hearing setting its motion for summary judgment of foreclosure for November 27, 2017, and served all parties, including counsel for the appellants. Again, the appellants took no action, and on November 27, 2017, the trial court entered a final judgment of foreclosure. This appeal followed.
STANDARD OF REVIEW
The parties agree that the question of whether a judgment is void is reviewed de novo . Infante v. Vantage Plus Corp.,
The appellants contend that because they filed a motion for an extension of time, they were entitled to a hearing prior to the entry of a default. Because there was no hearing, they contend that the entry of the default and the default final judgment are void. The appellants also contend that the judicial default entered by the trial court amounted to a sanction, and thus the trial court was required to consider the requisite factors announced in Kozel v. Ostendorf,
ANALYSIS
The true purpose of the entry of a default is to speed the cause of action and to prevent a dilatory or procrastinating defendant from impeding the plaintiff in the establishment of his claim. Coggin v. Barfield,
*989Green Solutions Int'l Inc. v. Gilligan,
Failure to provide notice of a default when "any paper" has been filed renders the default void. M.W. v. SPCP Grp. V, LLC,
Contrary to the appellants' argument, there is no requirement to conduct a hearing prior to the entry of a default where the non-moving party has failed to defend the action. See Picchi v. Barnett Bank of S. Fla., N.A.,
The case of Lisca v. Florida Atlantic Construction, Inc.,
Here, the record reflects that the appellants took no action after receiving their thirty-day extension of time; receiving notice that Fannie Mae was seeking a judicial default based on their failure to respond to the complaint; and receiving notice that based on the default, Fannie Mae was seeking to set, and had set, for hearing, its motion for summary judgment. In fact, the only documents filed by the appellants from the time the action was filed, until the entry of the final judgment, were the motions referenced above: counsel's notice of appearance, counsel's notice of unavailability, and the motion seeking an extension of time to file an answer to the foreclosure complaint. These documents contain no indicia that Robles intended to defend against the foreclosure action. We, therefore, conclude that the trial court committed no error by entering the order of default without first conducting a hearing.
*990We are likewise unpersuaded by the appellants' argument that the order of default entered in this case was entered as a sanction. The record in the instant case is devoid of any suggestion that the order of default in the instant case was entered as a sanction. Instead, the record unambiguously reflects that the default was entered due to appellants' failure to file a responsive pleading, establish excusable neglect, or otherwise defend against the foreclosure action. Accordingly, we conclude that the appellants received more than sufficient notice and failed to take action, and thus the record supports the entry of the order of default.
CONCLUSION
Based on this record, we find that: (1) the appellants received sufficient notice that Fannie Mae was seeking a default against them for failing to file an answer or other responsive pleading to its foreclosure action; (2) despite this notice, the appellants filed no responsive pleading; (3) because the appellants filed no responsive pleading they were not entitled to a hearing prior to the entry of the default; (4) the order of default did not constitute a sanction; and (5) the default was warranted. Accordingly, we find no error and affirm.
Having found no error, we likewise find that the appellants are not entitled to an award of attorney's fees.
Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.